III. Constitutional Structure of Azad Kashmir and Its Relationship to Pakistan

Government of Azad Kashmir, by the Pakistanis, for Pakistan.Former president of Azad Kashmir (name withheld)

Azad Kashmir has its own constitution, the Azad Jammu and Kashmir Interim Constitution Act of 1974, and a locally chosen parliamentary form of government, as described above (see Chapter II, Background: Administration). The constitution allows for many of the structures that comprise a self-governing state, including a legislative assembly elected through periodic elections, a prime minister who commands the majority in the assembly, an indirectly elected president, an independent judiciary, and local government institutions.

But these provisions are hollow. Under Section 56 of the Jammu and Kashmir Interim Constitution Act (which was drafted by the Federal Ministries of Law and Kashmir Affairs in Islamabad), the Pakistani government can dismiss any elected government in Azad Kashmir irrespective of the support it may enjoy in the AJK Legislative Assembly. The Interim Constitution Act provides for two executive forumsthe Azad Kashmir Government in Muzaffarabad and the Azad Kashmir Council in Islamabad.

The latter body, presided over by the prime minister of Pakistan, exercises paramount authority over the AJK Legislative Assembly, which cannot challenge decisions of the council. The council is under the numerical control of the federal government in Islamabad, as in addition to the Pakistani prime minister it comprises six other federal ministers, the minister of Kashmir affairs as the ex-officio member, the prime minister of Azad Kashmir, and six Azad Kashmir members elected by the Legislative Assembly.38 The interim constitution act lists fifty-two subjectsvirtually everything of any importancethat are under the jurisdiction of the Azad Kashmir Council, which has been described as the supra power by the Azad Kashmir High Court. Its decisions are final and not subject to judicial review.

Thus, Azad Kashmir remains for all intents and purposes under Pakistans strict control, exercising no real sovereignty of its own. From the outset, the institutional set up in the territory was designed to ensure Pakistans control of the areas affairs. According to the United Nations Commission for India and Pakistan (UNCIP)39 resolutions, Azad Kashmir is neither a sovereign state nor a province of Pakistan, but rather a local authority with responsibility over the area assigned to it under the ceasefire agreement.40 The local authority or provisional government of Azad Kashmir as established in October 1947 handed over to Pakistan under the Karachi Agreement of April 28, 1949, matters related to defense, foreign affairs, negotiations with the UNCIP and coordination of all affairs relating to Gilgit and Baltistan (strategically important territories that now comprise Pakistans Northern Areas but are claimed by India as part of the state of Jammu and Kashmir).

A former president of Azad Kashmir (who preferred not to be named in this report) described the situation as [g]overnment of Azad Kashmir, by the Pakistanis, for Pakistan. He also pointed to the striking continuity of the old princely system under British rule because of Islamabads viceroy role generally and the maintenance of the traditional biradarisystem locally.41

The constitution of Azad Kashmir poses major impediments towards genuine democracy as it bars all those parties and individuals from participating in the political process who do not support the idea of Kashmirs accession to Pakistan and hence precludes all those who are in favor of Kashmiri independence. To fail to support, or fail to appear to support Kashmirs accession to Pakistan means to invite the ire of Pakistans abusive intelligence agencies and its military. It also entails inviting political persecution, such as ineligibility to contest elections or to seek employment with any government institution, or the curtailing of basic freedom of expression. (These issues are explored in more detail in Chapters IV and V, below.)

Because of the mandate of the AJK Legislative Assembly and its particular division of power with Pakistan, the elected political leaders of Azad Kashmir essentially remain titular heads of the territory while the real power resides in Islamabad. This requires a compliant Azad Kashmir administration, and explains the repeated changes in Azad Kashmirs leadership at Pakistans will. And in common with previous such exercises, the most recent election to the Legislative Assembly, in July 2006, was greeted with widespread charges of poll rigging by all opposition political parties and independent analysts (see Chapter V, below).42 Another instrument of exercising control is through assigning virtually all major civil and police administrative posts to Pakistani civil and military officials who are on deputation from Islamabad. The Azad Kashmir government is also totally dependent on the federal government of Pakistan for its finances.

Power in Azad Kashmir is exercised primarily through the Pakistani armys General Headquarters in Rawalpindi, just outside Islamabad, and its corps commander based in the hill station of Murree, two hours by road from Muzaffarabad. It is widely understood in Pakistan and privately admitted by virtually all politicians from Azad Kashmir that the corps commander in Murree is known to summon the Azad Kashmir prime minister, president and other government officials regularly to outline the militarys views on all political and governance issues in the territory.

During the rule of Pakistans first military leader, Ayub Khan (1958-68), President K.H. Khurshid of Azad Kashmir was forced to resign by a mid-level police official and later jailed in Palandari and Dalai Camp. During Prime Minister Zulfikar Ali Bhuttos government (1972-77), another president of Azad Kashmir, Sardar Qayyum, was suddenly arrested by a mid-level official of the Federal Security Forces in Muzaffarabad and subsequently dismissed. During General Zia-ul-Haqs government (1977-88), Brig. Hayat Khan was appointed administrator of Azad Kashmir, a post he held for seven years. When a civilian government was reestablished in Pakistan in 1988, Benazir Bhuttos swearing in as prime minister was shortly followed by the installation of an elected government of Bhuttos Pakistan Peoples Party in Azad Kashmir. When Bhutto was sacked by the president in 1990, Azad Kashmir Prime Minister Mumtaz Rathore was escorted to Islamabad in a helicopter and made to sign a letter of resignation.

When Nawaz Sharif became prime minister of Pakistan in 1990, Sardar Qayyum once again rose to power as prime minister of Azad Kashmir, the nominee of the Pakistani army. During Bhuttos next stint in power (1993-96), she cautiously chose not to dismiss Sardar Qayyum, but elections in 1996 brought her Pakistan Peoples Party to government again in the territory, as expected, and Sultan Mahmood Chaudhry became prime minister.

Following General Musharrafs 1999 coup, Sardar Muhammad Anwar Khan took the oath of office on August 25, 2001, as president of Azad Kashmir. Sardar Anwar had been nominated by the All Jammu and Kashmir Muslim Conference (MC, the ruling party in the AJK Legislative Assembly, backed by Musharraf) on July 29, 2001, in a decision evidently reached in Islamabad, as at the time of his nomination the members of the assembly had little or no idea who Anwar was.43 Prior to this appointment, he had served in the Pakistani army for thirty-five years and was an army major-general at the time of his appointment, retiring from the army just four days before his election as president on August 1, 2001.44 Controversially, his retirement was under an ordinance issued by Musharraf that waived the restriction on government servants accepting any political post before they had been retired for a minimum of two years.45 Anwars term of office ended following Legislative Assembly elections held in Azad Kashmir on July 11, 2006. On July 27, AJK Muslim Conference candidate Raja Zulqarnain Khan was elected president of Azad Kashmir for a five-year term.46

Sardar Sikandar Hayat Khan, a veteran of Pakistan-sponsored politics, served as prime minister of Azad Kashmir from July 2001 to July 25, 2006, when he was succeeded by Musharraf nominee and Muslim Conference president Sardar Attique Ahmad Khan.47

Regarding Azad Kashmirs political party landscape, since the early 1990s real decision-making authority and the management of the Kashmir struggle has rested firmly with the Pakistani military through the ISI and ISI-backed militant organizations (see above, Chapter II, Background: The role of militant groups), and the mainstream political parties allowed representation by Pakistan in the AJK Legislative Assembly have not figured among the principal political actors in Azad Kashmir. However, they have benefited from the perks, privileges and funds for purposes of patronage and generating public support.

Sardar Karamdad Khan, a Muzaffarabad-based lawyer, summed up for Human Rights Watch the dispensation of power in the territory:

The Pakistani bureaucracy is the real administrative power, the ISI and the Pakistan army exercise coercive power. And under the constitution, the elected representatives are subservient to the Kashmir Council controlled by Pakistan. High Court and Supreme Court Judges can only be appointed by approval of the Ministry of Kashmir Affairs in Islamabad. The Minister of Kashmir Affairs can dismiss the PM, as can the Chief Secretaryanother Islamabad appointee. Under Article 56, the President of Pakistan can dissolve the Legislative Assembly. Surely, this is a truly unique form of self-rule.48

43 Human Rights Watch was informed by five members of the ruling Muslim Conference on separate occasions that they had never heard of Sardar Anwar until they were informed by Anwar that Islamabad had nominated him for election by the Legislative Assembly. All five requested anonymity.

44 The presidents military career is not mentioned in his profile on the Government of Azad Kashmirs official website.